Austin s Intentions: A Critical Reconstruction of His Concept of Legal Science
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1 Austin s Intentions: A Critical Reconstruction of His Concept of Legal Science RICHARD T. BOWSER* J. STANLEY MCQUADE** I. INTRODUCTION A. The Need for a New Look at the Notion of Legal Science and for Considering John Austin s Contributions to the Subject Legal theory is inevitably affected, for good or ill, by prevailing philosophies. The link is generally not direct, but indirect. Philosophical notions, particularly epistemological concerns, shape science and notions of science and have had profound impact on legal theory sometimes called legal science. 1 The old deductive versions of philosophy, modeled on mathematics, were sidelined in the nineteenth century by empirical notions that connected well with the model of physical sciences. Rapid advances in the social sciences, especially statistical analysis, in the early twentieth century again impacted jurisprudence through the legal realist movement. 2 * Associate Professor of Law, is magna cum laude graduate of Grove City College, Pennsylvania, and a summa cum laude graduate of the Norman Adrian Wiggins School of Law, where he was a member of the Campbell Law Review and an editor of the Religious Freedom Reporter. Professor Bowser also holds an M.A. from Westminster Theological Seminary in Philaldelphia. Richard T. Bowser teaches Jurisprudence, Constitutional Law, Estate and Gift Taxation, Estate Planning, Christianity and the Law, and Christian Ethics and Professionalism. ** J. Stanley McQuade, Lynch Professor of the Philosophy of Law at the Campbell University School of Law, received his law degree with top honors from The Queens University of Belfast in Thereafter, he received B.D., B.A., Ph.D., and M.D. degrees from the same university, as well as a Masters degree in Theology from Union Theological Seminary. A certified anesthesiologist, he is a prominent national lecturer on law and medicine topics. He has also served for 25 years as a Methodist minister and has published several works in the areas of law and medicine and jurisprudence. 1. See Howard Schweber, The Science of Legal Science: The Model of the Natural Sciences in Ninteteenth-Century American Legal Education, 17 LAW & HIST. REV. 421 (1999), for a helpful survey of ways in which American legal theory appropriated scientific terminology and concepts in the Nineteenth Century, and how it differed from the development of legal science theory in Britain. 2. E.g., Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897) ( For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. ). 47
2 48 CAMPBELL LAW REVIEW [Vol. 29:47 These are major examples; but, legal change also occurs on a smaller scale with nearly every advance in the scientific method that finds its way into a persuasive philosophy and nearly every alteration of philosophical thinking that finds its way into science. Yet, what are arguably the two most significant events in the last half century, so far as philosophy and scientific method are concerned, have still made little positive impact on the law. These significant events are: (1) advances in language/logic philosophies, especially those deriving from the work of Ludwig Wittgenstein; and (2) the computer revolution and the development of computational-based logics. It will be a major objective in this article to see how these currently available tools might be put to use in contemporary legal theory and practice. 3 One might proceed, without more ado, to deal with this matter directly, ignoring history in general and John Austin in particular. But there are good reasons why it is better to proceed from his ideas to our present situation. To begin with, he was a major legal philosopher whose predominant aim was to establish the study of law on a scientific basis. But second, and more importantly, his work has generated discussion and argument that has continued to the present. Much current legal controversy centers around issues raised by Austin s work, with the debate still ongoing and as lively as ever. It seems better, then, to approach the subject of current legal science through the medium of Austin s ideas, especially as seen through the eyes of his modern critics and advocates. 3. It is not being suggested here that the legal profession has not made use of contemporarily available computer resources. It is the logical principle and formal structure underlying the computer that has not been incorporated into legal theory. Vast databases with sophisticated search engines and processing devices have already been created for legal purposes, including prediction, and the end is not yet. But even sophisticated processing is fundamentally different from thinking in the philosophical sense; the latter is beyond the capabilities of even the most sophisticated of computer programs. The computer is irredeemably left-brained: true reflective thinking requires imagination and creativity. The idea that there can be a science of law is not currently a popular one. Many question the validity and usefulness of any formal arrangement of law. A central contention of the present article will be that total skepticism about legal formalism is misplaced. It is out of step with current developments in the philosophy of science generally, and the nature of formal systems in particular. It will be argued, indeed, that Austin s views on this subject are basically sound, may be restated in believable terms, and should prove useful as a program for developing and communicating legal theory.
3 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE 49 B. John Austin and Legal Science Within a few years of his death, John Austin s writings, largely ignored up to that point, began to be influential, and his reputation soared both in England, continental Europe, and America. Many factors may have played a part, but a major item must have been the fact that Austin appeared to put the study of law on a scientific basis. 4 The scientific feature of his work was favorably mentioned by many prominent legal authors in the latter part of the Nineteenth Century and was clearly considered important. 5 The physical sciences had become very prestigious; they had become the models for how progress in learning should be made. The universities which housed the science faculties participated in this blaze of glory, and the way for any profession to acquire academic respectability seemed to be to move its research and training functions into the university environment. Austin and his new science of law seemed to provide the means to achieve this desirable objective, and so he became almost a cult figure in elitist legal circles. During the second quarter of the Twentieth Century, Austin s popularity began to decline significantly. 6 Other models of science, espe- 4. See WILFRID E. RUMBLE, THE THOUGHT OF JOHN AUSTIN: JURISPRUDENCE, COLONIAL REFORM, AND THE BRITISH CONSTITUTION 3-4 (1985) (noting Lord Brougham s statement, among others, that Austin was the most able and learned cultivator of the science [of jurisprudence] in our day ). 5. Id. 6. Austin s reputation eroded rapidly following World War I, and he has commonly been characterized as a narrow pettifogger who reduced the concept of law to a series of dry (and doubtful) definitions. But his credentials as a thinker are solid. One could pile one learned opinion upon another in praise of Austin s contribution to the philosophy of law in England and America. The somewhat contrary opinion of Hart, that Bentham was the greater legal philosopher of the two, stands alone and is questionable. See H.L.A. HART, ESSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL THEORY 108 (1982). How one evaluates Austin as compared to Bentham perhaps depends on what one considers the essential marks of the true philosopher. If the ability to notice underlying and deep problems in apparently plain and clear matters is an important indicator, then it was conspicuously absent in Bentham and equally clearly present in Austin. Bentham argues ingeniously at times on philosophical questions, but he is impatient of criticisms and difficulties, brushing them aside, often summarily, and proceeding to his next point. Austin, on the other hand, is very reflective, giving difficulties and objections his full attention and only resolving or dismissing them after due consideration. This is the rare gift of a true philosopher. It often prevents him from achieving all his practical aims and objectives, but it enables him to lay a good conceptual framework for those, perhaps more practical, persons who will follow after. And this is important, as a fortress is only as strong as its foundation (Ut fundamentum, ita et arx), or to put it another way, you cannot build a solid house upon sand. Matthew 7: Unfortunately, this reflective trait makes philosophers difficult to interpret. Clarity and consistency may be
4 50 CAMPBELL LAW REVIEW [Vol. 29:47 cially the social sciences, were achieving success and seemed more promising for use in the law. Austin s work was moved to the back burner and perhaps off the stove altogether. But he was by no means finished. His notions had become so firmly embedded into legal theory by this time that it would have been difficult to erase them altogether. A number of Austin s themes are still with us, no longer linked with his name or his writings, but present nevertheless. Indeed, they may be all the more influential as they are not overtly and consciously in view, but operating silently, without much awareness of their existence and therefore with little or no attempt to critically evaluate them. The most important of Austin s ideas, then and now, is clearly his perception of legal science. 7 Austin complained bitterly about the state of legal learning in England; chiefly that it was chaotic with no notion of organizing general principles. 8 He commented that no other body of Law, obtaining in a civilized community, has so little of symmetry and consistency as our own. 9 He also described the legal learning of the typical English lawyer as nothing but a beggarly account of scraps and fragments. His memory may be stored with numerous particulars, but of the law as a whole, and of the mutual relations of its parts, he has not a conception. 10 Thus, his chief complaint about English law and the legal learning of English lawyers appears to have been that it was not organized or connected together in any systematic way. In short, they had no adequate idea of legal science. Clearly, Austin must have considered that his main task as the first Professor of Jurisprudence in the scientific and modern University of London was to remedy this situation and establish the study of law on a scientific footing. Indeed, he treated the terms jurisprudence and juriscience as synonyms. 11 His first set of lectures was intended to deal with general jurisprudence, considering the notions underlying all legal systems, and from this he proposed to proceed to particular sacrificed here and there to take account of some perceived deep problem, and this may happen without the philosopher making it clear what the problem was perceived to be. 7. For a detailed review of Austin s approach to legal science and legal education, see RUMBLE, supra note 4, at See JOHN AUSTIN, LECTURES ON JURISPRUDENCE, OR, THE PHILOSOPHY OF POSITIVE LAW 467 (Robert Campbell ed., London, John Murray, 5th ed. 1885) (describing English law as an empire of chaos and darkness ). 9. RUMBLE, supra note 4, at Id. at See The Uses of Jurisprudence appended to JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 365 (Great Minds Series, Prometheus Books 2000) (1885).
5 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE 51 jurisprudence, organizing English law under its particular divisions. How he would have gone about this second work is a matter for conjecture, since he wrote no more on the subject. C. Difficulties Interpreting Austin s Intentions In 1952, Professor J.A. Passmore published the first edition of his landmark book, Hume s Intentions, 12 arguing that Hume, ostensibly a clear and precise author who took some pains to say exactly what he meant, was nevertheless capable of more than one interpretation, or at least of being viewed from several perspectives. And it would seem that Hume, who has often been represented as the ultimate and supreme skeptic, should be evaluated more thoughtfully, taking into account other more subtle aspects of his work. The problems involved in interpreting the writings of John Austin are similar. Fundamental likenesses between the two exist and are striking. Austin does not present his views as attractively as Hume, but he shares the same basic approach to writing. He, too, is concerned with precision about what he is saying and how he says it. 13 Yet despite this, and here again resembling Hume, his apparent simplicity and clarity is deceptive. There are themes and motifs present in his work that do not always easily come together in a single consistent system of thought. So in a full-fledged analysis of Austin s works, we might have to include sections on Austin the utilitarian, Austin the empiricist, Austin the legal scientist, Austin the apologist for Hobbes, and so on. Furthermore, the interactions between these themes, and at times the clash between them, produce some vagueness and ambivalence, if not downright contradiction at critical points in his writings. 14 The task of interpreting Austin for our own day is difficult, but for the present purposes it is enough, and it is no doubt easier, to assess Austin according to the following questions: 1. What did Austin actually say? What is the plain meaning of his words? 2. What was he trying to say? What were his underlying motives and intentions? 12. JOHN A. PASSMORE, HUME S INTENTIONS (1952). 13. Austin is reported to have remarked that his gift or penchant was to take obscure and difficult ideas and make them clear and understandable. 14. If Austin was aware of these conflicts within his ideas and it is likely that he was this would lend support to the notion that he became hesitant about fully expressing what he had set out to say.
6 52 CAMPBELL LAW REVIEW [Vol. 29:47 3. What was he taken to say by his contemporaries and later interpreters? 4. What should he have said? Are there any simple changes or additions that would make his thesis more acceptable and more useful in the contemporary study and practice of law? II. JOHN AUSTIN S CONCEPT OF THE SCIENCE OF LAW A. Brief Description of Austin s Jurisprudence 1. Austin s Central Definitions: Laws as Commands Austin s views are well known, though often misunderstood, and only a brief summary of his main positions need be undertaken here. He clearly organizes his thinking about law around a number of key words which he defines carefully and in formal terms. 15 Austin initially defined law as an ordinance of reason. This is a quotation from Aquinas indicating that law is something given by one rational being to another. 16 Robots do not obey laws; they merely respond to signals. Austin s reason for beginning in this way is not obvious. 17 In any event, Austin proceeds quickly to his own characteristic definition of law as commands, each of which contains two elements: a request coupled with a threat of harm. 18 The constant association of the 15. He was trained as an equity draftsman and valued precision in language. He even wrote his proposal of marriage to the future Mrs. Austin in the manner of a deed of trust. See RUMBLE, supra note 4, at ST. THOMAS AQUINAS, THE SUMMA THEOLOGICA. I-II, q. 90, a. 4 (Fathers of the English Dominican Province trans., Christian Classics 1981). 17. Aquinas meant that the being that receives the law understands it and appreciates the reason for obeying it. Austin s view was Hobbesian and quite different. For Austin, as for Hobbes, we ultimately obey laws, not because we necessarily think they are good, but because they are accompanied by threat of evil. Over a period of time, this threat of evil produces the habit of obedience, so that the ruler does not need to show the stick any more; the command is enough. It is rather like the conditioned reflex of Pavlov s dogs, salivating on hearing the dinner bell even when no food was offered. It is possible that Austin begins this way in order to distinguish legal science from physical science and to distance himself from a then-common view of natural law, which included the physical laws of nature under that heading. 18. He rejects the view of the eighteenth century Anglican divine, William Paley, who would allow the law to use incentives as well as threats, the carrot as well as the stick. Austin insists that commands must be backed by threat of evil because he thought such was the common usage of the word. But this is only so in criminal law. Contracts and wills might be viewed otherwise, i.e., as the promise that if you make them in the proper manner they will work. Probably the real reason is that threats accord better with Austin s underlying Hobbesian philosophy. Rewards are more in line with Aquinas and the view of law as a rational affair for rational beings. Hobbes sovereign is a bully, whereas Aquinas views a ruler as one who must be good and wise.
7 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE 53 threat of harm with the ordinance produces a general habit of obedience in those to whom the law is directed. 2. Positive Law as Distinct from Positive Morality Austin, having determined that all laws are commands, distinguishes them into four categories: divine laws; the laws of positive morality; laws so-called only by analogy; and positive law, which is the law of the realm. Positive law alone is the subject matter of legal science and the main focus of his work. Law properly so called is the law of the realm, and comprises the aggregate of the general commands 19 of the sovereign. Austin carefully distinguishes positive law from positive morality. Both are commands (requests accompanied by threat of harm) and, so, clearly law. The crucial difference relates to who does the commanding. Positive law, the law of the realm, derives from the sovereign or delegates of the sovereign. Positive morality, on the other hand, is promulgated only by the general public or some group within it, and the accompanying threats of harm tend to be inchoate, ranging from public disapproval through ostracism to more violent behaviors. Austin uses this definition to insist that custom, however widely approved and practiced, is not law until it is declared to be so by a competent legal authority. Consequently, in his view, there is no such thing as constitutional law or international law. Constitutional law requires an authority above the sovereign, which to Austin is an impossibility. Likewise, there can be no international law without an international sovereign. These constitute only positive morality, not positive law. 3. Who or What is the Sovereign? Austin formally defines the sovereign as a determinate or determinable person or group of persons in an independent political society to whom the population as a whole has a habit of obedience, but who has no habit of obedience to a political superior. Persons who comprise the sovereign entity are not just the vague them of positive morality. It must be possible to identify them as if by name, address, and social 19. The command from a sovereign to close the door would not be a law since it is not general. But Austin did not require generality as to the persons addressed since acts of Parliament could be directed to individual persons. It is noteworthy, however, that these individuals were representative persons, e.g., the Lord Mayor of London or the Admiral of the cinque ports, not ordinary persons. Most modern Austinians require generality both as to persons and things commanded. In the United States, of course, a statute directed at an individual would also be unconstitutional.
8 54 CAMPBELL LAW REVIEW [Vol. 29:47 security number. The reasons for this requirement are not made clear. 20 The most serious problem with this definition is the combined complexity and vagueness of the sovereign when so described. The sovereign in England has three constituent parts. The first two are the monarch (whoever is upon the throne) and the members of the House of Peers, all of whom are clearly determinate. The third part is not, as one might expect, the House of Commons, but rather the electorate who voted them into office and who are theoretically determinable. In the United States, the situation is less complex, but the notion of the sovereign is equally amorphous. The sovereign is not Congress, the President, nor any other officers of state; it is the electorate. This unwieldy and almost unimaginable concept is made manageable by the notion of delegation. The electorates in the United Kingdom and the United States exercise their function directly only periodically, at elections. Between elections, they delegate their powers to the officials whom they have elected and their appointees. Another problem is that Austin, by making absence of a habit of obedience to a political superior the defining characteristic of the sovereign, seems to suggest that the matter is one of power and not of right. The sovereign is the unconditioned conditioner. This is not, of course, what he wishes to say. He specifically states that might is only one condition of right, although a very necessary one, since one cannot be a sovereign without the power to make orders stick. But he is never very clear as to what the other conditions are. The notion of an independent political society, which is closely related to that of sovereignty, is couched in the same terms. It is a society whose sovereign person or persons do not have a habit of obedience to a political superior. Thus, the viceroy of India, when that country was under British rule, was not a sovereign even though his word was law, since he was subject to the crown. The distinction between a political and a non-political society is not very clearly explained. Austin says that there are several conditions, but the only one which he mentions is size; a community must have substantial population to be considered a political society. He therefore denies (contra Savigny) that the customs of a primitive tribe are laws. Customs only become laws when they are officially stamped and approved by the sovereign, and the chief of a tribe is not a sovereign even though his every command is obeyed and the tribe is 20. The most probable reason is that the laws which are the subject matter of jurisprudence must be clearly identifiable in order to be organized scientifically. This requirement would be like Hart s secondary rules for identifying laws.
9 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE 55 totally independent since a tribe is too small to be a political society. Loose confederations of small groups, as when several tribes or small cities unite periodically for mutual defense or some other purpose, may satisfy the numerical requirement on these occasions, but such combinations are not considered to be independent political societies by Austin since they are not united under one sovereign for a sufficient period of time. Austin is, of course, unable to say how large a group must be to become such an independent political society (i.e., How many stones make a heap?). He admits that quite small city-states in ancient times were political societies, but he does not really make it clear why this is so. B. Interpreting Austin s Thought Even if we assume that Austin s purpose was to create an empirical legal science by verbal definitions, his work poses a number of interpretive problems. First, it is difficult to determine whether the law, for Austin, is to be identified with what actually happens in fact, or with what was supposed to happen according to the rules and regulations of the jurisdiction. Hobbes, and the legal realists of the twentieth century, would say that the law is what actually happens, and that anything else is just empty talk with no legal significance. The mainline legal tradition, on the other hand, views law as prescriptive, in the sense that it indicates what is supposed to happen if its rules are followed. Austin appears to have had a foot in both camps, but his Hobbesian shoe is a very large one and rather firmly planted. 21 This may explain his rather odd and awkward representation of the sovereign as a set of actual identifiable persons. For Hobbes, power must lie with and be exercised by actual, not ideal or hypothetical persons, a view that is open to the criticism that it does not distinguish between the proper and the corrupt administration of the law. 22 A realistic view of the outcome of a Chicago courtroom trial in the era of Al Capone might be that the party supported by the mob will prevail in the court of a judge who is in Capone s pocket. But, as Roscoe Pound pointed 21. It would appear that Austin was also influenced here by James Mill s ELEMENTS OF POLITICAL ECONOMY (1821). See W.L. MORISON, JOHN AUSTIN 48 (1982). 22. Hans Kelsen expresses this as failing to see the difference between a tax collector and a highwayman.
10 56 CAMPBELL LAW REVIEW [Vol. 29:47 out, this would not show the application of law but its absence, as law has been replaced by a totally illegal system. 23 Most modern interpreters have taken the view that this is a serious problem for Austin and have concluded that Austin reads best when his jurisprudence is taken to be a normative, rather than a descriptive study. W.L. Morrison contends that the revisionists are mistaken and Austin is right; the normative and descriptive elements in law can exist together in the manner in which Austin portrays them. 24 This question, so far as the present article is concerned, is moot, since the problem is best taken care of in the light of modern developments in formal studies, which will be considered later in this study. The second difficulty is identifying and portraying Austin s view of the relationship between law and moral values. The matter appears to be clear, as he states unequivocally that the existence of law is one thing, and that its goodness or badness is another, and he insists that the business of the jurist is not to criticize or improve the law but to take it as it is. This position is to be expected in one who was reorganizing law on the model of the physical sciences, but it conflicts with the traditional view that an important part of the function of lawyers is to make beneficial changes in the law. Austin is by no means saying that law should be static and unchanging or independent of morality. He is saying, rather, in line with Bentham s views, that law reform is not the function of jural science, but is the business of ethics in general and the science of legislation in particular. Unlike Bentham, however, Austin does not confine law-making to Parliament, but allows for judicial legislation also. This means that the judge may wear two hats, one representing the interpretative functions of the bench and the other its legislative activity. This is awkward enough, but if we consider that the court may be accepting and endorsing ideas argued by counsel and that many legal minds may lie behind counsel s opinion, we are left with the conclusion that everyone connected with law has both legal and legislative hats, which must be taken off or put on during the course of legal business. In short, his 23. Dean Pound did not put it exactly this way, but it is the gist of his criticism of American legal realism. See Roscoe Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 TUL. L. REV. 475 (1933). 24. MORISON, supra note 21, at 4 ff, identifies Harold Lasswell and Myres McDougal in America, and H.L.A. Hart in England, as modern legal thinkers who, although rejecting Austin s views as they are now commonly understood, have embraced philosophical foundations, and applied them to legal studies in ways that are of a kin with Austin s own foundations and applications.
11 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE 57 view of the relationship of law to morals is not only subtle, but awkward. C. Modern Criticisms and Rejoinders 1. The Main Criticisms of Austin s Work Within a few years of his death, Austin s work was being praised in the most fulsome terms. 25 Much of this popularity was due to the fact that he was seen in the latter part of the nineteenth century as an advocate for a radical empiricist version of legal science, creeping along from case to case, close to the facts, without too much in the way of overarching theory. What Austin had actually said disappeared without a trace into what he was thought to have said. More recently, critics, perhaps less enamored of radical empiricism, have been less kind. Almost every aspect of his teaching has been called into question, especially in the last half century, when a number of distinguished juristic philosophers either attacked Austin s views or took up the cudgels on his behalf. The principal criticisms leveled at Austin s views have been: 1. His description of laws as commands, producing a habit of obedience, misrepresents the nature of the authority given to law. 2. His requirement that sovereignty, as defined by him, is necessary for the existence of law unnecessarily denies the validity of primitive (and modern) customary law, including international law and constitutional law. 3. His (alleged) program to reduce the inchoate body of regulations to a set of simple rules (requests coupled with a threat of harm) is an impossible project. It is based on the radical empiricism of his day, but is out of touch with modern notions of scientific method. 4. His version of sovereignty (a determinate person or persons with no habit of obedience to another such person or group) is clumsy to the point of being inconceivable within modern legal systems. The same criticism can also be leveled against the related notion of the independent political society Austin has passed over or obscured the necessary relationship of law to moral values. This has been a major issue in the modern 25. Markby, writing in 1889, was openly Austinian and cited him frequently as the dominant authority on legal philosophy. He commented that no one had contradicted Austin, at least not in England. WILLIAM MARKBY, ELEMENTS OF LAW CONSIDERED WITH REFERENCE TO PRINCIPLES OF GENERAL JURISPRUDENCE (Oxford, University Press). Markby had some minor differences with Austin and also dealt with particular, as opposed to general jurisprudence, which Austin never reached. 26. See H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994).
12 58 CAMPBELL LAW REVIEW [Vol. 29:47 debates centered around the term legal positivism. Lon Fuller 27 and, more recently, Ronald Dworkin 28 have been major critics, maintaining that Austin has misrepresented, if not ignored, the unavoidable presence of morals within the law. 2. The Defense of Austin: Taking Care of Problems By Simple Modifications Austin is not currently short of advocates and interpreters 29 who endeavor to show, and with some success, that by making minor adjustments, such as Austin might well have been persuaded to adopt, the usual objections to his jurisprudence can be avoided. The following are the main points of this defense: 1. The sovereign is most conveniently viewed, from the jurisprudential perspective, not as the collection of actual officials who are making the law and making it work, but as the constitutional system which allocates to each official and body its functions and powers. This avoids the clumsy analysis of legal systems in terms of actual persons. 2. The notion of a political society, from the perspective of jurisprudence, has only an indirect relationship to numerosity. It is better taken to be one sufficiently complex to have laws which require the offices of a legal profession. A simpler society, which had no need of lawyers, might have law in some sense of the word, but would have no need of jurisprudence Austin s sharp distinction between custom and law is replaced in various ways. Kelsen bases law on customary acceptance of law by the community in general, while Hart emphasizes the importance of customary acceptance by the legal community. Either of these 27. LON L. FULLER, THE MORALITY OF LAW (1964). 28. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977). 29. The best known of these are Hans Kelsen and H.L.A. Hart. Kelson s concept of a pure theory of law resembles, but is not identical to, Austin s analytical jurisprudence. See HANS KELSEN, PURE THEORY OF LAW (Max Knight trans., 2d ed. 1967). It is explicitly normative in type, distinct from any sociological or other factbased study of law. It is grounded on customary acceptance of the rule of law by the governed community (rather than sovereign fiat) and, therefore, allows for the possibility of constitutional and international law. He also considers laws to be directives to officials rather than the general community. For Hart s modifications of Austin s views, see supra note 26. Hart, like Kelsen, grounds law in custom, but for Hart, custom is the traditional acceptance of the rule of law by the legal profession rather than the community in general. 30. This would be essentially Savigny s distinction between primitive and political legal systems.
13 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE 59 expedients allows international law and constitutional law to be treated as law properly so-called. 4. The idea that law consists of commands in the sense of requests accompanied by threat of harm is generally abandoned outside the area of criminal law. One way of retaining Austin s definition is to treat laws, as does Kelsen, as commands issued to officials. This is a possible way of viewing the matter but it is awkward and, as Hart comments, 31 does not adequately take cognizance of the fact that most laws are not published to officials only, but to the community in general as well. Most modern authors acknowledge that law must be reinforced by sanctions, but these are not limited to threats of harm. They can also include positive inducements. This is the more convenient way to look at the laws relating to the proper making of a will or enforcing only those contracts which conform to certain requirements (e.g., the Statute of Frauds). 5. Acknowledgement of the authority of the law is not a conditioned reflex. Austin appears to have been led astray on this point by his admiration for Hobbes or his enthusiasm for the methodology of James Mill s economics. The reasons for conforming to law are complex. Awareness of sanctions may play a part, but an acknowledgment that the law is, in some sense of the word, good and/or just, must also be considered important. 6. With regard to the vital matter of the formal organization of legal materials into a systematic version of law, it is by no means certain that Austin intended it to be a list of simple commands. It is true, as was mentioned earlier, that he used the term aggregate as an inclusive term for all the laws of a jurisdiction. However, he never spelled out his proposal in these terms, and he was critical of Bentham s predilection for simple rules. 32 There is no reason to conclude that Austin thought that law could or should be analyzed in such a simple manner. His admiration for the scientific qualities of Roman Law, indeed, argues to the contrary Austin s views on the relation of law to moral values, as was suggested earlier, are by no means simple and are capable of more than one interpretation. His plain statement that the nature of law is one thing and its goodness and badness another, has been taken to mean that moral values have no place in law. This need not be 31. HART, supra note 26, at AUSTIN, supra note 8, at See RUMBLE, supra note 4, at 32, which lists quite a number of books on Roman Law, including Savigny s multivolume treatises, among the books donated to the Inner Temple Library by Sarah Austin. The loss of these books is especially regrettable since Austin was in the habit of writing comments in the margins. It is known that he developed an admiration for the organizational methods of Roman Law.
14 60 CAMPBELL LAW REVIEW [Vol. 29:47 so. He is probably talking here of using value statements to approve, disapprove or improve the law as it stands. This, he insists, is not the business of juriscience, which, like physical science, is descriptive only. Improvement is the business of ethics, especially the science of legislation. 34 But there is no reason why the values inherent in the law should not be included in a descriptive jurisprudence. What is ruled out is any necessary implication that the values described are anything more than observed facts present and functioning in the law. This is sometimes termed an externalist point of view, where an outsider is looking in on value statements in a system, as opposed to the internalist perspective of someone inside the system who accepts its values. 35 This position is defensible but may need some modification in the light of modern theories of logic, treated in Parts III and IV. III. PHILOSOPHICAL FORMALISM AND JURISPRUDENTIAL VALUES A. Brief Description of Modern Formal Studies 1. A Preliminary Summary and Statement of the Remaining Issues Hart and others have shown that Austin s proposal for legal science, when qualified here and there, is a viable scheme, which can be described as analytical or descriptive jurisprudence. Some major issues remain, however, which require clarification if a descriptive study of the law is to be effective and useful. The most important of these are: (1) the nature of the formal structures to be used in a jurisprudential analysis, and (2) the place and function of values, especially moral values, in legal systems. These are philosophical matters, and they underscore the old adage that unresolved differences are often due to underlying, unresolved philosophical issues. In the present case it is necessary to consider the effects, hopefully beneficial, of modern notions about formalism and value theory. This is not claiming that modern philosophers speak with a single voice on these topics, but only that forms of logic and value theory can be found that would be helpful in providing an underlying conceptual basis for an analytical science of law. 2. Logic in the Old Style: Deductive and Inductive Approaches The term logic, in its formal sense, is still commonly taken to refer to the logic of the syllogism, and modern introductory books on logic continue to be built around the notions of Aristotle and Euclid with 34. See HART, supra note See id. at Chap. VI. for Hart s discussion explaining this view.
15 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE 61 perhaps a little introduction to symbolic logic and a section on socalled inductive logic. 36 It is generally admitted by both teachers and students of these courses that they do not improve the reasoning ability of the student. Two types of books purporting to instruct lawyers in logic continue to be published. One variety peddles basic syllogistic logic with some suggestion as to how it may apply to legal reasoning. The other adopts a sort of inductive method and studies the reasoning processes of real judges found in their opinions on actual cases. It is submitted that both of these approaches miss the mark. The syllogism is seldom, if ever, used in real life arguments, including legal reasoning. The notion that courts take general principles and derive progressively particular propositions from them by deduction until they reach the case at law never really worked in practice; hopefully it can be considered dead. Some authors have suggested that bringing the facts of a case under a rule of law is a syllogistic argument, since the particulars are thereby subsumed under a general rule. But this is not so. The syllogism is based on a necessary connection between the premises and the conclusion: if you accept the former, the latter follows. This is not what happens when a legal term is applied to a case even though some suggest that it is. The second approach, seeking out and describing the forms of legal reasoning present in judicial writings, is likewise a misplaced effort. The problem with this approach is that judges do not create logical forms, but take and apply anything that is available to them. They are like computer users, not programmers. Their reasoning tools are commonly those forms already present in the law which they have inherited, or, more rarely, which they have imported from some other source. These approaches, both deductive and inductive, are inadequate in the sense that they appear to be out of step with what is happening in formal studies both in philosophy and in the practical world. This is particularly unfortunate as there is a great deal of formal material available, just begging to be put to use in the law. A brief account of the modern development of formalism should make this clear. 3. The Development of Modern Formal Studies: Game Theory Logic and mathematics have long been considered formal studies in that the results have only validity, not truth value. The conclusion 36. The term inductive logic was coined by John Stuart Mill to cover the formal methods of producing general propositions from factual information.
16 62 CAMPBELL LAW REVIEW [Vol. 29:47 will only follow in fact if the basic assumptions, e.g., the symbols and functions of mathematics, are taken to be true. The various kinds of mathematics were treated by Plato and Aristotle as separate and distinct entities, though not necessarily unrelated, and these were in turn thought to be different from formal logic. 37 The multiple category view of mathematics and logic persisted through the middle ages and has survived sporadically into modern times. Descartes, in the seventeenth century, first integrated algebra and geometry by showing that geometrical shapes could be described using algebraic formulae. 38 The same was shown in the early nineteenth century to hold true for formal logic. 39 Finally, nineteenth century mathematicians, especially Gottlob Frege, 40 linked all forms of mathematics and logic together in what has come to be described as game theory. All formal systems can be viewed as games, like chess, with pieces (i.e., pawns, kings, queens, knights, bishops and castles), together with the moves and their consequences which represent the rules of the game. Arithmetic, algebra, geometry and logic are thus seen as games with numbers, letters and shapes considered to be playing pieces while the various valid transformations that can be made are the moves of the game. These games can be pure or applied. Pure games are just that, games, but they can be applied to organize any set of materials, either for scientific or practical purposes. 37. The big question was how, and in what sense, the valid conclusions of these subjects were true. Medieval philosophers were divided into two main parties: the realists maintaining that the symbols of mathematics represented real entities somewhere (the heavenly forms) and the nominalists who said that they existed only as general terms (names) with nothing real actually corresponding to them. 38. This is coordinate geometry. Any point in a line has X and Y coordinates so that shapes, made up of such points connected together, can be described by algebraic equations. The equation for a straight line at 45 0 to the base would be x = y. Descartes derived formulae for common shapes such as a triangle, a circle and a rectangle. He concluded that irregular shapes, whether two dimensional or three dimensional, could be represented by combinations of simpler, more regular ones. 39. George Boole, a professor in the University of Cork in Ireland during the first part of the nineteenth century, represented formal logic in both arithmetical and algebraic forms. 40. Frege ( ), a professor at the University of Jena, reshaped the understanding of the relationship between logic and mathematics.
17 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE The Development of Modern Formal Studies: Ludwig Wittgenstein It would be difficult to overestimate the importance of Ludwig Wittgenstein s 41 contributions to formalism. He perceived that the game theory of mathematics applied equally well to a number of other things, including ordinary language. Obviously, the rules of grammar apply to language, but this was not important for Wittgenstein; he called this surface logic. There are word games everywhere in ordinary language that are used for all kinds of purposes, including argument. Wittgenstein s first explorations into this area focused on forms of language that imply the existence of something, and his work here led to the doctrine of verifiability, where the meaning of any term is determined by the steps and procedures that one might take to show whether the item indicated exists. The initial product of this early work was a set of radical notions about the meaning of words, which came to be known as logical positivism. 42 According to this view, propositions that could not pass the verifiability test were to be regarded as not merely doubtful or false, but meaningless; they were just sounds signifying nothing. 43 After initial enthusiasm, there was a general withdrawal from the stern logical positivist doctrines, with A.J. Ayer himself, its first publicist, leading the retreat. 44 This, of course, was not the end of linguistic logic. 45 The investigation of philosophical problems from the perspective of the logic of language is still very much alive. 41. Ludwig Wittgenstein ( ) was an Austrian engineer who transferred to Manchester University s famous school of engineering, where he became interested in the theory of mathematics. This interest led him to Cambridge, where he began to study philosophy. 42. See ALFRED JULES AYER, LANGUAGE, TRUTH AND LOGIC (1936). 43. The main tenet of logical positivism was that any term which could not be tested by a verification procedure was not merely false, but meaningless. Moral statements were understood as emotive statements or statements about personal preferences. The great problems of traditional philosophy were created by misunderstandings of language and were therefore styled pseudo-problems. 44. See 21 THE LIBRARY OF LIVING PHILOSOPHERS: THE PHILOSOPHY OF A.J. AYER (Lewis Edwin Hahn ed., 1992). Ayer later conceded that many philosophical problems were real problems and not merely due to confusion about the logical use of language. The investigation of philosophical writings for linguistic error is, nevertheless, still very much alive. 45. The notion that many philosophical questions are pseudo-problems created by misuse of language is still a major tenet of language-logic philosophers.
18 64 CAMPBELL LAW REVIEW [Vol. 29:47 The early logical positivism has been largely replaced by a number of different versions of linguistic logic. 46 The most significant of these, from the perspective of legal theory, is Wittgenstein s own later modifications of his original ideas. 47 In his later lectures and conversations with friends, he still maintained that the logical use of words should be viewed as the application of language games, but he came to regard function and context as vital notions in understanding meaning. 48 A different purpose creates a different meaning for the same word or sentence. One of Wittgenstein s most quoted statements is that a lever is a rod used for a different purpose. 49 He noted that even a different inflection on a word may change the meaning and show that it was intended as a command, a question or a denial. This necessary connection between meaning and function is very important for legal theory. It explains why sentences, including statutory clauses, are not meaningful until we know their context and the purposes they are intended to promote. There can be no rules without background and purposes to give them meaning. 50 Putting together what Wittgenstein said about logical forms, there are obviously three tasks to be performed when applying any logical game: 1. The system must be properly set up; the individual pieces must be clearly defined along with a consistent set of rules for the transformations (moves) that will be permitted; 46. Perhaps the best known of these was ordinary language philosophy which considered the notions buried in common speech as the facts which philosophy could use to resolve conceptual puzzles. The underlying principle would appear to be that ordinary language contains a sort of wisdom derived from common experience. A.J. Ayer was extremely critical of this movement and with good reason. It could have been used at one time to show that the earth was flat. 47. See LUDWIG WITTGENSTEIN, THE BLUE AND BROWN BOOKS (1958); LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (G.E.M. Anscombe trans., 3d ed. 1958) [hereinafter WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS]. His later thinking is largely reconstructed from lecture notes made by his pupils (published as THE BLUE AND BROWN BOOKS) and from conversations with friends, some of whom made shorthand notes of the discussion. 48. He felt that his earlier work in the TRACTATUS had focused too much on the indicative mood (factual statements) and on the logical use of nouns. LUDWIG WITTGENSTEIN, TRACTATUS LOGICO-PHILOSOPHICUS (D. Pears & B. McGuinness trans. 1961) [hereinafter WITTGENSTEIN, TRACTATUS]. 49. WITTGENSTEIN, TRACTATUS, supra note 48, at 3.3. Cf. WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS, supra note 47, at Aphorism 6, where he discusses the rod being incorporated in the brake system of a railway engine, and thus becoming a lever. 50. This is commonly expressed as the maxim, no rules without reasons.
19 2006] AUSTIN S INTENTIONS: HIS CONCEPT OF LEGAL SCIENCE The things or the enterprise to which the system is being applied must be clearly identified. A change in application will usually require changes in the game; and 3. The purposes or goals of the enterprise (application) must be identified and kept in mind when the calculus is being applied. These three interrelated matters can be formally illustrated in the following diagram: THE FORMAL CALCULUS (GAME) THE PURPOSES THE APPLICATION If these three essentials are not present, the application will not work well, if at all. Each of these elements must be set up properly and used correctly. So, if there is inconsistency within the system, ambiguity as to the applications, or if the goals are indeterminate, confusion will result. 5. Overview of the Main Points of Formalism Only a brief summary of the main points of formalism as it might apply to legal studies is appropriate here: 1. Ordinary language and logic philosophies have their uses in other areas, but so far as the law is concerned, we are mainly interested in special systems, created or adapted for a particular purpose. These may contain terms originally taken from ordinary language, but they are redefined to function in a new system in another and perhaps totally different way. Most formal arrangements are of this kind. Philosophers, scientists, drag-racers, and teenagers all develop special vocabularies of their own which may have little or nothing to do with their original use in ordinary language. 2. An almost infinite variety of symbolic games is possible. Traditional arithmetic uses sets of ten units, presumably because we have ten fingers, but there is no reason in the world why we shouldn t use any number we please. 51 Binary mathematics, with only two values, one and zero, proved apt as the basis of computer logic, representing that a switch was either on or off. Research mathematicians work frequently with picture symbols (icons), rather than numbers or letters, since mathematical processes may 51. The mathematical quantity p is used as the unit in some mathematical systems designed for use in biological studies.
20 66 CAMPBELL LAW REVIEW [Vol. 29:47 become too complicated to be represented as simple quantities or equations. Much of our thinking is likewise carried out using visual symbols (icons or picture logics). 52 The ball and stick images used to represent the nuclei and electrons of atoms in chemical theory are a familiar form of iconic logic. There can even be story logics where the system takes the form of a video clip. One story or visual narrative can be matched against the facts to see if it fits, or several stories can be compared to see which one fits best. Story logic may be considered an appropriate form for historical research; or for lawyers attempting to determine what the true facts are in any case; or for parents questioning the truth of children s statements about how a large denomination bank note came into their possession A formal system, of one sort or another, can usually be found or devised to represent and organize materials that are not put together in a totally random manner. Geometry was applied in ancient Egypt to resurvey the Nile delta every year when the floods had wiped out all the old landmarks. Copernicus and Galileo applied somewhat more complex geometrical systems to explain the movements of the heavenly bodies and cannon balls in flight. An obscure physician even devised statistical methods to standardize the preparations of foxglove tea that he used to treat patients with dropsy. Currently, research mathematicians do the most amazing things, tweaking already established mathematical systems to make them suitable for new purposes There is no reason why calculus systems should not be normative. If a set of norms are consistent, they can be represented formally, and the calculus application may be considered descriptive, since it is representing things, even if those things happen to be norms. This opens up the possibility for a scientific treatment of ethics and a science of law. 5. Formal systems are generally interchangeable. A regular arrangement can be expressed in more than one calculus, and translated 52. Wittgenstein s oft-quoted statement that the limits of my language are the limits of my world appears to have overlooked the possibility of thinking with visual symbols. But he my have included symbols of all kinds under language. WITTGENSTEIN, TRACTATUS, supra note 48, at See 1 JAMES MONTGOMERY BOICE, GENESIS: AN EXPOSITIONAL COMMENTARY (1998). Boice, a decidedly conservative theologian, used this rather novel notion to interpret the stories in the early chapters of the Book of Genesis, such as the Tower of Babel and the serpent in the Garden of Eden. 54. High echelon mathematicians are hired by the U.S. Department of Defense and by medical insurance interests to find better ways of evaluating defense spending and payments for medical services. The ways in which these experts tweak conventional statistical methods to get better results is, to say the least, remarkable.
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